On behalf of the defendant, the defendant and the appraiser, Mr. Haim Ben Ari, testified. In addition, the defendant summoned brother Menachem to testify.
Adv. Manor did not file an affidavit of the main witness and did not appear to testify, due to a serious illness that unfortunately occurred in her.
- Discussion
I will preface by saying that after examining the evidence and hearing the testimonies, I came to the conclusion that The sale agreement was signed by the plaintiff, by way of misleading or concealing material facts by the defendants about the planning status of the "apartment"", and therefore the claim should be accepted against the two defendants. Here are my reasons:
- The defendants' knowledge of the planning condition of the "apartment", including the lack of a building permit regarding it, precedes the signing of the sale agreement
There can be no dispute that the fact that the "apartment" is an opaque space and does not have a lawful building permit, was known to both the defendant and Adv. Manor Moving on to signing the sale agreement. The defendant stated that she decided to sell the apartment after learning that the "apartment" was a space to be filled for which it was not possible to obtain a mortgage, as she said (see paragraph 12 of her main witness affidavit N/3). Adv. Manor testified in the criminal proceeding that she and the defendant were aware that the "apartment" did not have a building permit prior to signing the sale agreement. She said in her testimony:
"As for this apartment, even at the time I made the transaction, both the seller and the buyer knew that there was no building permit. I referred the buyer to the municipality to look into the matters, I did not sign documents such as the page from 99, but I assume that the matter was exposed to him and he knew about it" (p. 10, paras. 22-24 of the minutes of the hearing of January 10, 2019).
She went on to say:
"Q. Didn't you check with the municipality whether there is a permit or not?
- I knew that there was no permit because Gila [the defendant, my note, K.G.] also said that it was known to everyone and she did not conceal it" (pp. 12, 17-18)
Despite the clear knowledge of the two defendants about the planning condition of the "apartment", including the fact that it is an opaque space, and that it does not have a lawful building permit, it is not possible to find in the sale agreement any statement, even a hint, about this situation. On the contrary, the sale agreement referred to the "apartment" as a residential apartment for all intents and purposes, and in clause 3.2 of the agreement, the defendant went further and stated that to the best of its knowledge "There is no proceeding pending in connection with the apartment due to construction without a permit, or a deviation from the permit.".